Bombay High Court
Bhushan @ Chhotu S/O Vinodrao ... vs The State Of Maharashtra, Through ... on 27 July, 2017
Bench: V.M. Deshpande
1 apeal113.115.123.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.113/2015
Bhushan @ Chhotu s/o Vinodrao Jawre,
aged 23 years, r/o Swagat Nagar,
New Narsala Road, Nagpur. .....APPELLANT
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Hudkeshwar, Nagpur. ...RESPONDENT
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Mr. U. P. Dabale, Advocate for appellant.
Mr. N. B. Jawade, A.P.P. for respondent-State.
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AND
CRIMINAL APPEAL NO.115/2015
Chaganlal s/o Shivmurtlal Shriwas,
aged 30 years, r/o Swagat Nagar,
New Narsala Road, Nagpur.
(In Jail) .....APPELLANT
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Hudkeshwar, Nagpur. ...RESPONDENT
-------------------------------------------------------------------------------------------
Mr. G. B. Hemke, Advocate for appellant.
Mr. N. B. Jawade, A.P.P. for respondent-State.
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AND
CRIMINAL APPEAL NO.123/2015
Prashant s/o madhukar Jogdand,
aged 27 years, Occ. Nil, r/o Swagat Nagar,
New Narsala Road, Nagpur. .....APPELLANT
::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:50:13 :::
2 apeal113.115.123.15.odt
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Hudkeshwar, Nagpur. ...RESPONDENT
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Mr. A. D. Patil, Advocate for appellant.
Mr. N. B. Jawade, A.P.P. for respondent-State.
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CORAM:- V. M. DESHPANDE, J.
Date of Reserving the Judgment
:15.06.2017
Date of Pronouncing the Judgment
: 27.07.2017
J U D G M E N T
1. These three appeals were taken up for hearing
simultaneously and these are decided and disposed of by this
common judgment since all these appeals arise out of the
judgment and order of conviction passed by the learned Special
Judge under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Nagpur on 24.02.2015 in Special
Criminal Case No.21/2012.
2. Criminal Appeal No.113/2015 is filed by the original
accused no.3. Criminal Appeal No. 115/2015 is filed by original
accused no.2 and Criminal Appeal No.123/2015 is filed by original
accused no.1. In the judgment, the appellants will be referred to
by their original positions.
3 apeal113.115.123.15.odt
3. By the impugned judgment, accused No.1-Prashant and
accused No.2-Chaganlal are convicted for the offence punishable
under Section 376(g) of the Indian Penal Code and they are
directed to undergo rigorous imprisonment for 10 years. In
addition to it, they are directed to pay a fine of Rs.2000/- by each
of them and in default, they are directed to suffer rigorous
imprisonment for 3 months.
Accused no.3-Bhushan is convicted for an offence
punishable under Section 377 of the Indian Penal Code and is
directed to suffer rigorous imprisonment for 5 years and to pay a
fine of Rs.1,000/- in default of payment of fine, he is directed to
suffer rigorous imprisonment for one month.
4. Along with the appellants, the trial was also conducted
against the accused no.4-Sanjay and accused no.5-Pankaj. These
two accused are acquitted of all the offences.
All the accused persons were acquitted of the offence
punishable under Section 376 (F) of the IPC. Similarly accused
no.1 Prashant, accused no.2-Chaganlal, accused no.4-Sanjay and
accused no.5-Pankaj were also acquitted of the offence punishable
under Sections 377 of the IPC.
4 apeal113.115.123.15.odt
Accused no.3-Bhusan, accused no.4-Sanjay and accused
no.5- Pankaj were acquitted of the offence under Section 376 (G).
All the accused persons were also acquitted of the
offence punishable under Section 3 (1) (xii) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
5. The prosecution case as it is disclosed during the course
of trial is stated as under:
On 02.07.2012, Vivek Padghan (PW8) was day officer
from 10.00 a.m. to 10.00 p.m. at Police Station, Hudkeshwar. On
the said day, Prakash (PW11) and his daughter, victim no.1 and
victim no.2 and some relatives came to the Police Station. On
inquiry by Vivek Padghan both the victims disclosed that 4-5 boys
have committed rape on them. Report of the incident was lodged
by the victim no.1. Her report was reduced into writing as per her
say. Her report is at Exh.-18. On receipt of the oral report, Vivek
Padghan registered a crime for an offence punishable under
Section 376 (2) (g) and 377 of the IPC vide Crime No.28/2012
against 5 accused who ultimately faced the trial. The printed FIR
is at Exh.-19. Further investigation was carried out by PI Mamta
Nandagavali (PW7).
5 apeal113.115.123.15.odt
6. As per the FIR, the first informant is taking education in
the 7th standard. Her friend, victim no.2 is aged about 14 years
and she resides at Prabhat Nagar and she left her education prior
to 2 years when she was in the 5th standard.
The FIR further states that on 01.07.2012, the victim
no.1 and her father Prakash (PW11) had been to one grocery shop
at 5.30 p.m. There she met with her friend, victim no.2. After
purchasing grocery, she and her father and victim no.2 came to
the house. Thereafter, both the victims went near Radhanagar
Church for taking blouse of one Pinki who used to reside as tenant
in the house of victim no.1. After giving that blouse, both the
victims again came to the grocery shop. That time, victim no.2
purchased some spices and thereafter they went to the house of
victim no.2. After giving the said, they came to the house of
accused no.5-Pankaj, friend of victim no.2. It was 8 O'clock in the
night. Pankaj was not present and the house was locked.
Thereafter, victim no.2 made a phone call from a coin box phone
facility. Thereafter, they both went to the house of a friend of
Pankaj who was also known to victim no.2 and from his house,
victim no.2 made a phone call. That time accused no.5-Pankaj
told them that he will be returning at 9.30 p.m. Therefore both
6 apeal113.115.123.15.odt
the victims waited by sitting in the open space.
At 9.30 p.m. accused no.5-Pankaj came to his house.
That time, he was accompanied by his 4 friends. Victim no.2
introduced victim no.1 with accused no.5-Pankaj. He also
introduced his friend i.e. accused no.1-Prashant, accused no.2-
Chaganlal, accused no.3-Bhusahn @ Chotu and accused no.4-
Sanjay. Pankaj informed victim no.2 that his friends are there
hence they should go to their house. Upon that when both the
victims were returning, after some time accused no.1-Prashant and
accused no.3-Bhushan followed them. They asked both the
victims to accompany them to the house of accused no.2-
Chaganlal and took them to his house at Swagat Nagar. When
both the victims reached to the house of Chaganlal, Chaganlal and
Sanjay were watching blue film on the DVD. They asked both the
victims to sit in the side room on a Diwan (bed). Thereafter
accused no.5-Pankaj left the place for taking his dinner. However,
he returned after 10 minutes. Thereafter accused no.1-Prashant
came in the room where the victims were sitting. He started
removing clothes of victim no.1. Upon her refusal, threat was
extended to her that if she resists or raised voice then she will be
faced with dire consequences. Thereafter, accused no.3-Bhusan
7 apeal113.115.123.15.odt
@ Chotu came there and he put his private part in the mouth of
victim no.1. Victim no.1 gave a slap to him hence he left the
place. Then accused no.2-Chaganlal came there on the call being
given by accused no.3. He also put his private part in the mouth
of the victim no.1. Thereafter accused no.1-Prashant came there.
He removed all the clothes of victim no.1 so also his own clothes
and fell the victim no.1 on a mattress on the ground and had a
forcible sexual intercourse with her resulting into great pains to
her and blood started oozing from the private part of the victim
no.1 After having a sexual intercourse, accused no.1-Prashant
discharged. Thereafter, he gave a call to accused no.2-Chaganlal.
He also removed his clothes and also had a forcible sexual
intercourse with victim no.1. Accused no.1-Prashant had a forcible
sexual intercourse thrice and accused no.2- Chaganlal had a
forcible intercourse twice. They were also pressing her breasts.
The FIR further states that that time victim no.2 was
sleeping on the bed in the next room and accused no.5-Pankaj
who was also completely necked was having sexual intercourse
with victim no.2. It is further stated that victim no.2 informed the
victim no.1 that accused no.4-Sanjay also had a sexual intercourse
with her.
8 apeal113.115.123.15.odt
The FIR further states that at 5 O'clock in the morning,
accused no.4-Sanjay and accused no.2- Chaganlal took the victim
nos.1 and 2 respectively on their motorcycle and left them at
Beldar Nagar. From there both the victims were going on their
feet. That time a close relative of victim no.1; Firoj met them. He
took both the victims and brought them to the house of the victim
no.1. There immediately victim no.1 narrated the incident which
happened to her and victim no.2 and thereafter they approached
to the police and report was lodged.
7. PI Mamta Nandagavli (PW7), after receipt of the
investigation papers of Crime No.128/2012 on 02.07.2012 visited
the spot of incident. The spot of incident is plot no.130, Swagat
Nagar which is residence of accused no.2- Chaganlal Shrivas.
PI Nandagavli inspected the spot and prepared the spot
panchanama in presence of pancha witnesses. Suresh Bhamkar
(PW3) and Rahul Kalamkar were with her that time as panch
witnesses. The investigating officer noticed a television set of
Videocon company, one DVD player and 6 VCDs. When those CDs
were played, the investigating officer noticed that those CDs were
9 apeal113.115.123.15.odt
of obscene movies. She seized those articles along with one
remote and also one quilt, mattress and the clothes which were
scattered on the spot. She also seized one pillow cover having
blood stains. All the articles were seized while drawing the spot
panchanama Exh.-26. The articles seized from the spot were
immediately deposited in the malkahna. Blood samples of accused
no.3 were seized under seizure panchanam at Exh.-57 so also of
accused no. 5 under seizure panchanama Exh.-58. Accused no.3-
Chaganlal's blood, pubic hair were also seized under the seizure
memo Exh.-59. Seizure panchanama Exh.-60 is in respect of the
blood samples and pubic hair of accused no.1-Prashant. Blood
sample and pubic hair of accused no.4-Ajay were seized under
seizure memo Exh.-61.
Blood sample, pubic hair and vaginal swab of victim
no.1 were seized on 03.07.2012 under seizure memo Exh.-27. So
also under Exh.-28 blood samples, pubic hair, vaginal swab of
victim no.2 were seized.
Victim no.1 also produced her clothes on her person at
the time of incident and those clothes were seized by the
investigating officer in presence of pancha by drawing seizure
memo Exh.-29. Clothes of accused persons were also seized under
10 apeal113.115.123.15.odt
different seizure memos. All muddemal articles were deposited in
the malkhana.
Further investigation was taken up by Santosh
Wankhade (PW12) on 04.07.2012. He recorded statement of
victim no.2. Further investigation was entrusted to Gangaram
Sakharkar (PW14)
8. Gangaram Sakharkar (PW14) seized documents from
Prakash (PW11). He also seized transfer certificate from mother
of the victim no.2. He also seized Hero Honda motorcycle from
accused no.2- Chaganlal and also from accused no.4-Sanjay. He
sent all the seized articles to Forensic Lab for chemical analysis
under requisition Exh.113. After receipt, the CA report and DNA
report are filed on record. He also seized electric bill of house
no.2- Chaganlal Shrivas under seizure memo Exh.-126 and
electricity bill is at Exh.-127. He also seized caste certificate of
victim no.1 and after completion of the investigation, he filed the
charge-sheet.
9. In order to bring home the guilt of the accused persons,
the prosecution has examined in all 14 witnesses and also relied
11 apeal113.115.123.15.odt
on various document proved during the course of trial. From the
line of cross-examination and from the statements recorded under
Section 313 of the Code of Criminal Procedure, the defence of the
accused is that of denial and false implication.
10. After appreciating the entire prosecution case, the
learned Judge of the Court below has passed the impugned order
and acquitted accused no.4-Sanjay and accused no.5-Pankaj and
convicted the other appellants as observed in the opening
paragraph of this judgment. Hence, this appeal.
11. I have heard Mr. U. A. Dabale, learned counsel for
appellant in Criminal Appeal No. 113/2015 for accused no.3,
Mr.C. B. Hemke, learned counsel for appellant in Criminal Appeal
No.115/2015 for accused no.2, Mr. A. D. Patil, learned counsel for
appellant in Criminal Appeal No.123/2015 for accused no.1 and
Mr. N. B. Jawade, learned A.P.P. for the respondent-State.
12. According to the submissions of the learned counsel for
the appellants, the appellants are falsely implicated at the behest
of victim no.1. They denied their presence at the spot of incident.
12 apeal113.115.123.15.odt
It is also the submission of Mr. Hemke that no title documents in
respect of the house property are placed on record to show that
the house belongs to accused no.2-Chaganlal.
It is the submission of all the learned counsel for the
appellants that the version of victim no.1 (PW1) is improbable.
They submitted that there is no corroboration to her version from
victim no.2 (PW2). They submitted that since the victim no.1
along with victim no.2 ran away from their house to go to
Hyderabad, when their plan failed, the victim no.1, in order to
save her skin, has falsely implicated them. It is also submitted that
there are improvements in her evidence. All of them relied on the
following cases:
(i) S. Ramakrishna Vs. State; 2008; AIR SCW 8201.
(ii) Lalliram & Anr Vs. State of Madhya Pradesh;
2008 ALL MR (Cri) 3282 (SC)
(iii) Moti Lal Vs. State of Madhya Pradesh; 2008 AIR SCW 4846
(iv) Munna Vs. State of Madhya Pradesh; (2004) 10 SCC 254
13. Per contra, the learned A.P.P. vehemently submitted
that the prosecution has ably proved the guilt of the present
appellants. He painstakingly pointed out the evidence of victim
13 apeal113.115.123.15.odt
no.1 (PW1) which is also corroborated by the scientific evidence.
He submitted that the learned Judge of the Court below has
correctly reached to the conclusion after appreciating the
prosecution case. He therefore prayed for dismissal of the appeal.
Age of the Victims:
14. Victim no.1 is the first informant. She lodged oral
report Exh.-18 on 02.07.2012. In the report, she disclosed that
her age is 12 years. She pointed out that at the time of lodging of
the report, she was taking education in the 7th standard.
Her evidence was recorded on 30.01.2013 i.e. after one
year of lodging of the report. That time she disclosed her age as
13 years.
In the FIR she disclosed the age of victim no.2 as 14
years. While recording the evidence, victim no.2 disclosed her age
as 15 years and she gave her date of birth as 06.02.1999.
15. Prakash (PW11) is father of victim no.1. He disclosed
in his evidence that date of birth of the victim no.1 is 28.08.1999.
Birth certificate of the victim no.1 issued by the competent
authority under Registration of Births and Deaths Act, 1969 and
14 apeal113.115.123.15.odt
the relevant rules of the Maharashtra Registration of Births and
Deaths Rules, 2000 placed on record and it is at Exh.-86. The said
document shows the date of birth of victim no.1 is 28.08.1999.
16. Further, the prosecution has also examined Aruna
Bante (PW10) Head Mistress of Sarvashri Prathamik Vidyalaya,
Sarvashari Nagar, Dighori, Nagpur where the victim no.1 was
admitted in the school in the second standard. She proved the
extract of General Admission Register of the School Exh.-75 where
the name of the victim is appearing and her date of birth is shown
as 28.08.1999.
17. In view of the birth certificate issued by the competent
authority under the Maharashtra Registration of Births and Deaths
Rules, 2000 which shows that the date of birth of victim no.1 was
28.08.1999, it is clear that on the date of the incident i.e. in
between 01.07.2012 to 02.07.2012, her age was 12 years
11 months.
18. So far as the age of the victim no.2 is concerned, she
has stated in her evidence her date of birth is 06.02.1999 and not
15 apeal113.115.123.15.odt
15.07.1999 as suggested to her.
Ravindra Wankhede (PW9) who was Head Master in
between 01.11.2006 to 01.01.2014 in Sarvashri Prathamik
Vidyalaya, Sarvashari Nagar, Dighori is examined to prove the
date of birth of victim no.2 where she used to take education. He
deposed that as per the school register, the date of birth is
15.07.1999. He produced extract of General Admission Register
of the school at Exh.-72 which shows that the date of birth of
victim no.2 is 15.07.1999. Even Exh.-73, transfer certificate of
victim no.2 also shows that her date of birth is 15.07.1999. Thus,
on the date of incident, the age of victim no.2 was 13 years 14
days.
Thus, it is clear that on the date of the incident, both
the victims were below the age of extending consent.
Evaluation of Evidence:
19. The present case, insofar as the actual incident is
concerned, revolves around the evidence of victim no.1 (PW1).
For the dismay to the prosecution, victim no.2 (PW2) has turned
hostile and has not supported the prosecution. On the contrary,
through her evidence, the accused persons tried to bring their
16 apeal113.115.123.15.odt
defence on record. The closer scrutiny of evidence of victim no.
(PW2) shows that she is won over by the accused persons for the
reasons best known to her.
20. The evidence of victim no.2 (PW2) shows that victim
no.1 was her friend. She is not denying her meeting at Mangesh
Kirana, with the victim no.1 along with her father as stated by the
victim no.1 in oral report as well as in her substantive evidence.
She has also stated that after reaching to the house of the victim
no.1 they thereafter came to the grocery shop again as stated in
the FIR, however from this point, victim no.2 took somersault and
deposed that victim no.1 disclosed to her that her mother pressed
her neck and assaulted on her stomach therefore they should leave
for Hyderabad by running from their respective homes but since
they were not having money, they proceeded towards the house of
accused no.5-Pankaj. She further stated in her evidence that at
9.30 p.m. accused no.5-Pankaj was present. Victim no.2 demanded
Rs.1,000/- from him however the accused no.5 informed that he
does not have any money and therefore they should return to their
houses. Thereafter according to the victim no.2, both these girls
proceeded towards the railway station and had a halt at the
17 apeal113.115.123.15.odt
railway station. There they met one person who inquired as to
where they are going. Upon that these girls disclosed that they are
going to Hyderabad. The said person asked as to where they are
hungry. At this stage, when it was noticed that victim no.2 is not
supporting the prosecution, she was declared hostile. During her
cross-examination by the learned APP, victim no.2 has denied
everything even her date of birth which is duly proved in her
documentary evidence. Not only that she flatly refused that she
was medically examined by Dr. Rutuja Fuke, a public servant.
21. The evidence of victim no.2 (PW2), after she was
declared hostile is nothing but an utter falsehood. If this witness is
to be believed then victim no.1 was assaulted in her house by her
mother, there was ill treatment to victim no.1 from her parents.
Victim no.2 was meeting victim no.1 after 2 years. And if that be
so there was no reason for victim no.2 to proceed to Hyderabad
along with victim no.1 as claimed by victim no.2. Therefore it is
crystal clear that the defence is tried to be established by the
accused persons by winning this tender age girl to throttle justice.
18 apeal113.115.123.15.odt
22. Before discussing the evidence of victim no.1 (PW1) it
would be useful to refer to paragraph 10 of the judgment of the
Hon'ble Apex Court in Moti Lal (supra)
"10. It needs no emphasis that the physical scar
on a rape victim may heal up, but the mental scar will
always remain. When a woman is ravished, what is
inflicted is not merely physical injury but the deep sense
of some deathless shame. An accused cannot cling to a
fossil formula and insist on corroborative evidence, even
if taken as a whole, the case spoken to by the victim
strikes a judicial mind as probable. Judicial response to
human rights cannot be blunted by legal jugglery."
23. In the present case, victim no.1 at the time of incident
had just attained the age of puberty. She was sexually assaulted
by the accused persons and the sexual assault on her as per her
evidence, was by accused no.1-Prashant and accused no.2-
Chaganlal. Not only that, she was subjected to intercourse against
the order of nature by accused no.3-Bhushan.
24. Her evidence is challenged by the learned counsel for
the accused persons on the grounds that; (i) there is delay in
19 apeal113.115.123.15.odt
lodging of the FIR, (ii) there are omissions in her FIR and (iii) her
evidence lacks corroboration.
25. According the learned counsel for the appellants, there
is a delay in lodging the FIR.
As per the FIR, in the morning hours on 02.07.2012,
when victim no.1 along with victim no.2 were returning on feet, a
relative Firoj Gajbhiye brought them to their house and thereafter
the report was lodged.
26. Prakash (PW11) father of the victim no.1 is stating on
oath that since in the night on 01.07.2012, his daughter failed to
return to the house, in the morning, he went to Police Station,
Hudkeshwar and informed about missing of his daughter. Lodging
of the missing report of his daughter is brought on record by way
of cross-examination of this witness at the hands of the accused
no.2. After lodging the missing report when he came to the house
that time he received a phone call of Firoj who informed him that
the victim is found and therefore Prakash directed Firoj to bring
the girl to the house. Thereafter when the girls were brought to
the house, she disclosed the happening to her to this prosecution
20 apeal113.115.123.15.odt
witness and thereafter they approached to the police station and
lodged the report.
27. Vivek Padghan (PW8) who has registered the offence,
has stated in his evidence that when the victim had been to the
Police Station, that time she was in frightened condition as it could
be seen from the cross-examination of this witness. Her frightening
was the most natural looking to her tender age when such an
incident had happened to her for the whole previous night. It was
but natural therefore if she was reluctant to narrate the facts
vividly immediately to the police personnels no doubt could be
raised about her version. In that view of the matter, if there is a
delay of about 8 to 10 hours in lodging the FIR, in my view, the
said cannot be held as fatal especially when nothing is brought on
record to show that there was any reason for the victim no.1 or
any other members to falsely implicate any of the accused.
28. It is also the statement of the learned counsel for the
appellant that Firoj is not examined. Examination of Firoj is
hardly relevant since it is not the claim of the victim that when she
met Firoj, she disclosed happening to him. Therefore, the
21 apeal113.115.123.15.odt
submission in that behalf made by the learned counsel for the
appellants is rejected.
29. Asking for corroboration from the victim of a rape, in
my view is nothing but rubbing salt on her wounds.
30. Dr. Rutuja Fuke (PW5) has examined both the victims.
She examined victim no.2 at 11.30 p.m. on 02.07.2012 where
victim no.1 was examined at 00.00 hrs on 03.07.2012. The injury
report of victim no.2 is available on record at Exh.-37.
The appellants were also examined by Dr.Namdeo
Borkar (PW4) and their medical certificates are on record at Exhs.
32, 33 and 34.
31. On 03.07.2012 at 00.00 hrs. she examined victim no.1
when she was brought to her by police authorities of Police
Station, Hudkeshwar. The evidence of Dr. Fuke shows that the
history of rape is given by the victim. When she examined the
private parts, she noticed labia major was having redness plus
mild swelling, she noticed redness on labia minora and swelling.
Examination of clitoris found normal, vaginal mucous was found
22 apeal113.115.123.15.odt
congested. Hymen was torn, circumferential was bleeding. She
proved medical certificate Exh.-41. Evidence of the doctor is
challenged by the defence when she was under cross-examination.
It is tried to be brought on record that in case of infection there
can be swelling on labia major and labia minor. In my view, by
making such a halfhearted and incomplete cross-examination the
defence cannot be allowed to take advantage of it. No further
question was put to the doctor as to whether she noticed any
infection. When the Doctor was under cross-examination, it was
expected from the cross-examiner to give a complete opportunity
to the doctor to explain about her finding.
Further she has stoutly denied the suggestion given to
her that there will be injuries on the private parts when the girl
was forced to have intercourse by 4 persons.
32. A submission was made on behalf of the learned
counsel for accused no.3 that when the history was given to the
Doctor, she did not state to the doctor about the oral intercourse.
The learned counsel for accused no.3 also invited my attetnion to
Exh.-40 to point out that the said document is silent about the oral
sex. What is stated in the history as given by the doctor that she
23 apeal113.115.123.15.odt
was taken by her friend to her friend's house where 5 boys were
present, out of which 4 boys raped her. The little girl that time
may not have understood the legal wrangles in respect of the
constitution of the offence under Section 375 and 377 of the IPC
therefore merely because she has not stated that accused no.3 had
an oral sex with her that cannot be a reason to disbelieve her
testimony.
The FIR, Exh.-18 has given a complete account as to
what happened to her so also in her evidence she has specifically
attributed the overt acts on the part of accused nos. 1, 2 and 3.
Her evidence is, in my view, duly corroborated by medical
evidence. There is nothing in her cross-examination by which it
could be said that she is exaggerating the incident or she is trying
to falsely implicated any of the appellants. In fact, her cross-
examination is not touching to the actual incident of forcible
sexual intercourse.
33. After scrutinizing the evidence of victim no. 1 (PW1), I
find that her testimony is truthful and worth accepting as it is.
There is no reason to disbelieve this girl as to why her evidence
should not be accepted by the Court in respect of the gory incident
24 apeal113.115.123.15.odt
which had occurred in the very early part of her life and the scar
which will remain throughout her lifetime.
34. After the incident, when victim no.1 was brought to her
home, she immediately disclosed the incident to her parents as it
could be seen from her oral report Exh.-18.
The statement made by the victim was
contemporaneous to the acts or immediately thereafter which
constituted the offence and it is admissible as res gestae under
Section 6 of the Indian Evidence Act. This is also relevant under
Section 8 of the Evidence Act.
35. Learned counsel for accused no.2-Chaganlal has
submitted that the prosecution has not proved that the house in
which the incident has occurred belongs to him. He submitted
that no title documents are filed on record to show the ownership.
I am afraid to accept such an adventurous submission. The Court
is not deciding a title suit. The prosecution has seized a bill issued
by MSEDCL. The said bill is at Exh.-127. The said shows that the
said house stands in the name of Smt. Kalavati Shivmurtlal
Shrivas. Shivmurtlal is the name of father of the accused no.2-
25 apeal113.115.123.15.odt
Chaganlal. Further, when this circumstance was put to Chaganlal
during Section 313 Cr. P. C. examination, he did not deny the said
nor give any explanation and has given an evasive reply, "I do not
know."
36. The learned counsel also submitted that Suresh (PW3)
has stated in his evidence that the spot panchanama was at plot
no. 73, Swagat Nagar. According to them, the spot of incident was
plot no. 73, Swagat Nagar. According to them the prosecution
case is that everything has happened on plot no. 130 but the
evidence of Suresh shows that he visited the spot of incident which
was plot no.73. The Court is not accepting this particular
submission since contemporaneous document Exh.-26 spot
panchanam shows that the instigating officer PI Mamta
Nandagavli called pancha at plot no.130, Swagat Nagar. Further,
Exh. 127 also shows plot no. 130, Swagat Nagar. Therefore,
merely because a wrong plot number is given by Suresh Bhamkar,
one should not tend to accept the submission of the learned
counsel for the appellant that the prosecution case needs to be
rejected.
26 apeal113.115.123.15.odt
37. Analyzing the evidence on record, I find that the
evidence of victim no.1 is clear, trustworthy and reliable and also
finds support from the medical evidence.
38. Muddemal articles were sent to the Chemical Analyzer
under requisition Exh.-113. CA report is at Exh.-121. Quilt,
pillow over, knicker, mattress, which were seized from the spot
were found to be stained with human blood. So also the clothes of
victim no.1 (PW1) were also found to be satined with human
blood. No explanation whatsoever was given for the same by the
accused persons. DNA report Exh.-125 also shows DNA profile of
the blood from the articles which were seized from the spot and
the DNA profile of victim no.1 (PW1) is matched and is having
same source of origin as that of victim no.1 (PW1). Also the DNA
report indicates accused no.1.
39. In my view, the prosecution has successfully established
the guilt of the present appellants. Consequently, I confirm the
judgment and order of conviction delivered by the learned Judge
of the Court below. Hence, following order is passed.
27 apeal113.115.123.15.odt
ORDER
(i) Criminal Appeal No.113/2015 is dismissed.
(ii) The appellant-Bhushan @ Chotu Vinodrao
Jawre shall surrender his bail bonds immediately,
failing which the court below shall take immediate
steps to procure his presence to serve out the
remaining jail sentence.
(iii) Criminal Appeal Nos.115/2015 and
123/2015 are dismissed.
JUDGE
At this stage, Mr. Dabale, learned counsel for the
appellant in Criminal Appeal No.113/2015 makes an oral
prayer that the appellant was on bail during the pendency
of the appeal and hence two week's time may be granted to
him to surrender.
Looking to the fact that during the pendency of the
appeal, the appellant was on bail, two week's time is
granted to the appellant-Bhushan to surrender to his bail
bonds. On his failure to surrender within a period of two
weeks from today, the Court below shall take immediate
steps to procure his presence to serve out the remaining jail
sentence.
JUDGE
kahale
